Rt. Hon. Rotimi Chubuike Amaechi V. Independent National Electoral Commission & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

OMOLEYE, J.C.A.

The substantive appeal is against the judgment of the Federal High Court, Abuja Division delivered on the 15th day of March, 2007.

Statement of Facts

The facts of this case as can be garnered from the printed record of proceedings are that upon being screened and cleared, the appellant, Rt. Hon. Chubuike Rotimi Amaechi, contested and emerged the winner at the Governorship primaries conducted by the Peoples Democratic Party for Rivers State. At the contest, out of eight (8) aspirants, the appellant scored 6,527 of the total votes of 6,575, the other seven (7) aspirants shared the remaining 48 votes. The 2nd respondent, Mr. Celestine Omehia, did not participate in the primaries exercise and therefore was not one of the contestants. After the conclusion of the primaries, the name of the appellant was forwarded to the 1st respondent, INEC as the Governorship candidate for Rivers State by the 3rd respondent on 14th day of December, 2006 in compliance with the provisions of section 32(1) and (2) of the Electoral Act, 2006. Subsequently, the 1st respondent published the names of the appellant appropriately. These are as shown in exhibits “B” and “C”. However, on the 2nd day of February, 2007 vide exhibit “D”, the 3rd respondent forwarded the names of the 2nd respondent to the 1st respondent in substitution for and or exchange of his, without any cogent and verifiable reason. The appellant therefore instituted the suit in the trial court against the respondents.

Originally the appellant sued INEC as sole defendant. However, by the leave of the trial court, the names of Celestine Omehia and the Peoples Democratic Party were added and joined as 2nd and 3rd defendants respectively in the suit on 13/2/07. By an amended writ of summons and an amended statement of claim both filed on 13th day of February, 2007 in the trial court, the appellant as plaintiff claimed against the respondents jointly and severally the following reliefs:

“1. A declaration that the option of changing or substituting a candidate whose name is already submitted to INEC by a political party is only available political party and/or the Independent National Electoral Commission (INEC) under the Electoral Act, 2006 only the candidate is disqualified by a court order.

2. A declaration that under section 32(5) of the Electoral Act, 2006 it is only a court of law, by an order that can disqualify a duly nominated candidate of a political party whose name and particulars have been published in accordance with section 32(3) of the Electoral Act, 2006.
3. A declaration that under the Electoral Act, 2006, Independent National Electoral Commission (INEC) has no power to screen, verify or disqualify a candidate once the candidate’s political party has done its own screening and submitted the name of the plaintiff or any candidate to the Independent National Electoral Commission (INEC).
4. A declaration that the only way Independent National Electoral Commission (INEC) can disqualify, change or substitute a duly nominated candidate of a political party is by court order.
5. A declaration that under section 32(5) of Electoral Act. 2006 it is only a court of law after a law suit, that can disqualify a candidate and it is only after a candidate is disqualified by a court order, that the Independent National Electoral Commission (INEC) can change or substitute a duly nominated candidate.
6. A declaration that there are no cogent and verifiable reasons for the 1st and 3rd defendants to change the name of the plaintiff with that of the 2nd defendant as the candidate of the People’s Democratic Party (PDP) for the April 13, 2007 Governorship Election in River State.
7. A declaration that it is unconstitutional, illegal and unlawful for the 1st and 3rd defendants to change the name of the plaintiff with that of the 2nd defendant as the Governorship candidate of People’s Democratic Party (PDP) for Rivers State in the forthcoming Governorship Election in Rivers State, after the plaintiff has been duly nominated and sponsored by the People’s Democratic Party as its candidate and after the 1st defendant has accepted the nomination and sponsorship of the plaintiff and published the name and particulars of the plaintiff in accordance with section 32(3) of the Electoral Act, 2006 the 3rd defendant having failed to give any cogent and verifiable reasons and there being no High Court order disqualifying the plaintiff.
8. An order of perpetual injunction restraining the defendants jointly and severally by themselves, their agents, privies or assigns from changing or substituting the name of the plaintiff as the River State People’s Democratic Party Governorship candidate for the April, 2007 River State Governorship Election unless or until a court order is made disqualifying the plaintiff and or until cogent and verifiable reasons are given as required under section 34(2) of the Electoral Act, 2006.”

On 26/1/07, the appellant applied for an order of interlocutory injunction to restrain the 1st respondent, INEC from changing or substituting his name as the Rivers State PDP governorship candidate for the April, 2007 Rivers State Governorship Election unless or until a court order is made disqualifying him based on cogent and verifiable reasons as required under section 34(2) of the Electoral Act, 2006 pending the determination of the suit before the trial court. The trial court in its ruling of 6/2/07 however refused to grant the relief, instead, it granted the accelerated hearing of the substantive case.

Counsel to all parties addressed the trial court on the respective issues formulated by them. The learned trial Judge found that the 3rd respondent has powers to substitute names of its candidates, the substitution must however be done in line with the procedure laid down by the provisions of section 34(1) and (2) of the Electoral Act, 2006. That is, not later than 60 days to the election, a political party in this case the PDP, 3rd respondent, must have informed the 1st respondent, INEC of its intention to change its candidate giving a cogent and verifiable reason for the change. The court can only interfere when the procedure for substitution has not been complied with. The learned trial Judge found accordingly that the substitution of the appellant and submission of the names of the 2nd respondent in replacement thereof was done within time. That the reason of error given by the 3rd respondent vide exhibit “D”, which is the application for the substitution of the appellant’s names with those of the 2nd respondent’s by the 3rd respondent having been accepted by the 1st respondent cannot be questioned by the court. What is more, it is the 1st respondent who has the responsibility to verify whether the reason given by a political party is indeed cogent. Albeit, exhibit “D” was issued “sub judice” and the fact that the 1st respondent acted on it is reprimandable, the action was therefore set aside. The 1st respondent ought to have awaited the outcome of the case pending before the trial court.

The appellant and the respondents were dissatisfied with the judgment of the trial court.

The appellant’s notice of appeal containing eleven (11) grounds dated 16/3/07 was filed on 19/3/07. The appellant’s brief of argument was filed on 5/4/07. The appellant also filed on 11/4/07 the reply brief to the 1st respondent’s brief of argument, a counter-affidavit to the 1st respondent’s motion on notice for leave of court to adduce further fresh evidence in the appeal and the reply brief to the 2nd respondent’s brief of argument on his cross-appeal.

The 1st respondent on 10/4/07 filed the notice of cross-appeal containing three (3) grounds, 1st respondent’s/cross-appellant’s brief of argument and the motion on notice for leave of court to adduce further fresh evidence in the appeal.

The 2nd respondent filed the notice of cross-appeal containing three (3) grounds and the 2nd respondent’s/2nd cross-appellant’s brief of argument on 10/4/07.

The 3rd respondent filed the 3rd respondent’s brief of argument and the 3rd cross-appellant’s brief of argument on 10/4/07. All the briefs and other processes filed were exchanged by parties. The appeal was adjourned to 11/4/07 for definite hearing.

However, on the said hearing date, the 3rd respondent, Peoples Democratic Party filed a motion on notice praying for an order of court striking out or dismissing the appeal for lack of jurisdiction.

The motion was predicated on two grounds vis:

“1. The appeal is now incompetent by reason of the expulsion of the appellant/respondent from the Peoples Democratic Party (PDP) thereby making the outcome of the suit a mere academic exercise.

2. By reason of the expulsion of the appellant/respondent from PDP, he has lost locus standi to prosecute this appeal.”

The motion was supported by an affidavit of four (4) paragraphs. Annexed to it also was exhibit “A”, a press statement issued on 10/4/07 by the Peoples Democratic Party (PDP) and signed by its National Publicity Secretary, John Odey in which the appellant, Hon. Rotimi Amaechi and some other members of the PDP were expelled from the party.

The 2nd respondent, Mr. Celestine Omehia also filed a motion on notice on 11/4/07 similar to that of the 3rd respondent. The motion was also praying for an order of court striking out or dismissing the appeal for lack of jurisdiction. The motion was hinged on two grounds vis:

1. The appeal is now incompetent by reason of the expulsion of the appellant/respondent from the Peoples Democratic Party (PDP) thereby making the outcome of the suit a mere academic exercise.
2. The appellant/respondent has no locus standi to continue with the prosecution of this appeal by reason of his expulsion from the Peoples Democratic Party.”

The motion was supported by an affidavit of seven (7) paragraphs. Annexed to the motion was exhibit “A”, a Press Statement dated 10/4/07, issued by the PDP expelling the appellant, Hon. Rotimi Amaechi from the party. The issue of jurisdiction is fundamental to the adjudication of a suit that if raised at the earliest opportunity behoves and is imperative for the court to determine it first before proceeding further with the prosecution of the suit. This would forestall the nullity of the trial, for lack of jurisdiction is an incurable vice. Proceedings and judgments delivered by a court which lacks jurisdiction are rendered a nullity. See the cases of:

(1) Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) p. 116;

(2) Abdulsalam v. Salawu (2002) 13 NWLR (Pt.785) p.505;

(3) Magaji v. Matari (2000) 8 NWLR (Pt. 670) p. 722;

(4) Obayiuwana v. Ede (1998) 1 NWLR (Pt.535) p. 670:

(5) Ogbu v. Urum (1981) 4 SC p. 1; and

(6) Oke v. Oke (2006) 17 NWLR (Pt. 1008) p. 224.

For this reason, it is expedient that the two applications which are the same be taken together first to enable the court ascertain whether or not it has jurisdiction to proceed with the appeal.

Mr. R. O. Yusuf, learned counsel for the 3rd respondent in moving the application observed that the appellant did not file a counter-affidavit in opposition to the motion. He submitted that the appellant is contending with the issues of his nomination, sponsorship and the substitution or change of his name by the 3rd respondent, PDP as its governorship candidate in Rivers State in the April 2007 Election. In this regard, he referred to the paragraphs 1 and 2 of the appellant’s amended statement of claim and reliefs 6 and 7 therein at pages 65 – 70 of the record of proceedings. He further referred to paragraph 3 of the supporting affidavit and paragraph 4 of exhibit “A”, that it is beyond doubt that the appellant is no longer a member of the PDP having been expelled from the party. Learned counsel contended that the appellant having lost his membership of the PDP by reason of his expulsion has no “locus” to maintain this appeal in line with the provisions of section 177(c) of the Constitution of the Federal Republic of Nigeria, 1999. Consequently, this court lacks the jurisdiction to entertain the appeal on the ground that there is no dispute between the appellant and the respondents. Secondly, further hearing and determination of the appeal will amount to the court adjudicating upon a case which is academic and hypothetical in nature. Courts are forbidden from engaging in such an exercise. He relied on the cases of:

(1) P.D.P v. Kwara State I.N.E.C. (2005) 15 NWLR (Pt.948) p. 230 at p. 253:

(2) Sanni v. Okenne Local Govt. (2005) 14 NWLR (Pt.944) p. 60 at p. 77: and

(3) A.-G., Anambra State v. A.-G., Federation & Ors. (2005) 9 NWLR (Pt. 931) p. 572 at p. 610.

Learned counsel for the 3rd respondent urged the court to grant the application and strike out the appeal for want of jurisdiction. Learned counsel for the 2nd respondent. E. C. Ukala, SAN while moving the motion of the 2nd respondent observed that the failure of the appellant in filing a counter-affidavit in opposition to the motion is tantamount to the admission of all the averments in the supporting affidavit by the appellant. Learned senior counsel submitted that it is not contested that the 3rd respondent has expelled the appellant from the party. The settled state of fact of the moment is that the appellant is no longer a member of the PDP on whose platform he seeks to contest election, the subject-matter of this appeal. He referred to the reliefs being sought by the appellant in the appeal at page 195 of the record of proceedings which have been adopted in the appellant’s brief of argument. He further referred to pages 68 – 70 of the record of proceedings relating to the appellant as the candidate sponsored by the PDP for the gubernatorial election of Rivers State.

In the unlikely event of the court determining the appeal in favour of the appellant, the court would be granting reliefs that will be based on the assumption that the appellant is not only a member of but that he has been sponsored by the PDP in compliance with his pleadings in paragraph 24(c) of the amended statement of claim at pages 67 – 68 of the record of proceedings. Whereas, the court can only hold that the appellant was a member of and was formerly sponsored by the PDP and that his candidature would have been upheld if he was not expelled from the party, thereby reducing the appeal to a moot debate and a mere academic exercise. The court will not allow itself to be dragged into a position of embarrassment wherein it will be making an order in vain. The provisions of section 177 of the 1999 Constitution are to the effect that except a person is a member of the political party sponsoring him, he cannot stand election on the platform of that political party. The Constitution of Nigeria and indeed the Electoral Act, 2006 do not recognise the concept of independent candidacy at any election. Learned senior counsel urged the court to strike out the appeal which has become futile.

Learned senior counsel for the 1st respondent, Chief Amaechi Nwaiwu, SAN associated himself with and adopted the submissions of the learned counsel for the 2nd and 3rd respondents that by the provisions of section 177(c) of the 1999 Constitution, the qualification for contest to the office of the governor is tied to the apron strings of a political party. He urged the court to strike out the appeal.

Replying, learned counsel for the appellant, L. O. Faghemi. SAN opposed the two applications which he said are designed to test the strength of the court. He submitted that the contention that the appellant no longer enjoys “locus” is a misconception. It is also erroneous that the jurisdiction of this court to adjudicate upon this appeal is tied to the appellant’s membership of a political party, rather, it is premised on the provisions of section 240 of the 1999 Constitution. The alleged issue of “locus” is neither statutory nor constitutional but a deliberate act of the 3rd respondent aimed at foisting a situation of helplessness on and ridiculing the court, the result of which will lead to anarchy if allowed to stand.

Learned senior counsel for the appellant attacked exhibit “A” the press statement issued by the 3rd respondent as suffering incurably for non-compliance with the provisions of section 91 (3) of the Evidence Act. It should consequently be discountenanced by the court. The interpretation of exhibit “A” is that the appellant is being expelled from the PDP pursuant to the provisions of Article 21 (1) of exhibit “E”, the Constitution of the PDP because he instituted this suit. This is a clog to the jurisdiction of the court to adjudicate upon the appeal. Also the 3rd respondent did not follow the proper procedure in line with the provisions of Articles 12(3), (4), (9) and (12) of exhibit “E” before expelling the appellant from the party. It is the National Executive Committee/Disciplinary Committee that has the power to discipline certain categories of party members including the appellant. The National Working Committee can only suspend a party member pursuant to the provisions of Article 21(4) of exhibit “E”. It is not in doubt that exhibit “A” is a mere resolution issued by the National Working Committee without reference to the National Executive Committee. It is very important for the copy of the document containing details of the decision leading to the expulsion of the appellant to be produced for examination by the court to ensure that the appropriate procedure was taken, otherwise no weight will be attached to it and it will be declared null and void. In essence, exhibit “A” should be construed “contra proferrentem”. Exhibit “A” must also be read together for the 3rd respondent to succeed on it. Furthermore, it must be established that the appellant was given an opportunity to exhaust all internal remedies of the party available to him and the procedure not followed by the appellant in this regard must be highlighted in a proper document.

The appellant’s senior counsel was of the opinion that exhibit “A” was issued by the 3rd respondent expelling the appellant from the party during the pendency of this appeal. It is “sub judice “, the court must resist and deprecate the action of the 3rd respondent. He relied in this regard on the cases of:

(1) Ezegbu v. F.A.T.B. Ltd. (1992) 1 NWLR (Pt. 220) p.699 at Pp. 729; and

(2) Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) p. 169.

Indeed the expulsion of the appellant is tantamount to the loss of his citizenship which the 1999 Constitution has guaranteed. Exhibit “A” should therefore be set aside by the court.

Learned senior counsel further submitted that the provisions of section 177 of the 1999 Constitution relate to election petitions and are not relevant to this suit. What is more, this court possesses requisite jurisdiction to grant the declaratory reliefs being sought by the appellant.

Learned senior counsel urged the court to dismiss the applications of the 2nd and 3rd respondents.

Replying on points of law Mr. R. O. Yusuf, learned counsel for the 3rd respondent submitted that the jurisdiction of a court is determined by the subject-matter of the claim of the plaintiff. If the claim is not within court’s competence, notwithstanding the provisions of section 240 of the Constitution, the court would lack the jurisdiction to adjudicate upon it. The disciplinary measure taken against the appellant by the 3rd respondent is an internal affair of the 3rd respondent which can not be litigated upon. The expulsion of the appellant is also not the subject-matter of this appeal. This court not being a court of first instance also does not have jurisdiction to adjudicate upon the issue. If the appellant feels aggrieved by it, he should proceed to the appropriate court for redress.

Learned senior counsel for the 2nd respondent, E. C. Okala, SAN replying on points of law maintained that the application is in good faith and not designed at testing the strength of the court. He submitted that this court is not a court of original jurisdiction in which the appellant can challenge the validity or otherwise of exhibit “A” and the provisions of exhibit “E”, the Constitution of the 3rd respondent. The court should therefore not accept the invitation to descend into the arena of a court of first instance. Referring to the provisions of section 91 (3) of the Evidence Act, learned senior counsel argued that the provisions do not exclude the happening of unforeseen events which could cause fundamental changes in the life of a litigation. Where a party in an action dies, the death certificate will be admissible and where a company goes into liquidation, it is regarded as dead; these situations correlate with the principle of law that when a cause of action dies, the court lacks jurisdiction to preside over it. It is settled that exhibit “A” killed the cause of this action/appeal, this court therefore has no jurisdiction to entertain the appeal.

Furthermore, learned counsel for the 2nd respondent contended that it is a fundamental principle of law that the “ultra vires” rule does not apply to matters relating to the internal management and the affairs of an association including a political party. On this line of reasoning, he referred to the case of:

Onuoha v. Okafor (1983) 2 SCNLR p. 244 at p. 251.

Learned senior counsel argued that non-compliance with any alleged laid down procedure of the party’s Constitution will still not render exhibit “A” null and void. The rights of a person as a party member under the party’s Constitution cannot be equated with a person’s right under the 1999 Constitution. The 1999 Constitution does not confer a legal right on any person to be sponsored by a political party. He referred to the cases of:

(1) Onuoha v. Okafor supra; and

(2) Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) p. 310 at Pp. 349-350.

It was observed by the learned senior counsel for the 2nd respondent that the case of Ezegbu v. F.A.T.B. Ltd. supra relied upon by the learned senior counsel for the appellant is not relevant to the instant case. Firstly, the appellant has not brought any application in court to challenge exhibit “A”. Secondly, the principle in the case which is in line with that in the case of Ojukwu v. Obasanjo supra at p. 255 was based on the judicial and judicious exercise of a court’s discretion. In the instant case, whatever order this court can possibly make in favour of the appellant cannot go beyond restoring him as a PDP member and sponsored gubernatorial candidate, which party has already expelled him. He however would need a court order to restore him as a party member. No court will ever grant such an order which is capable of embarrassing it. Also, such exercise of discretion would be contrary to procedure and would not be regarded as having been made judiciously.

The 1st respondent’s learned senior counsel, Chief Amaechi Nwaiwu, SAN replying on points of law submitted that the conditions precedent to the exercise of court’s jurisdiction are as stated by the Supreme Court in the case of:

Madukolu v. Nkemdilim (1962) 1 All NLR p. 587; (1962) 2 SCNLR 341.

He opined that where the conditions precedent are fettered, the exercise of courts jurisdiction also becomes fettered.

On the condition for membership and sponsorship of a party member, learned senior counsel for the 1st respondent referred to the provisions of section 177(c) of the 1999 Constitution and the case of:

Alh. D. Saude v. Alh. H. Abdullahi (1989) 4 NWLR (Pt. 116) 387

Learned senior counsel for the 1st respondent argued that the case of Ezegbu v. F.A.T.B. Ltd. supra relied on by the appellant in respect of the validity of exhibit “A” pursuant to the provisions of section 91(3) of the Evidence Act is not applicable to the instant case. In that case there was a disobedience of court’s order just like in the cases of:

(1) Onuoha v. Okafor (supra); and

(2) Dalhatu v. Turaki (supra)

While in the instant case no court order was made to restrain the appellant’s expulsion from the 3rd respondent party.

I have meticulously considered all the processes both in the appeal and those in relation to the application, as well as the carefully articulated submissions of all counsel in respect thereof. As earlier on noted, the application of the respondents questioned the jurisdiction of this court to continue to adjudicate upon the appeal. Jurisdiction is a radical and crucial question of competence. A defect in competence is offensive to and indeed strangulates adjudication. Jurisdiction is the dignity with which a court is powered to do justice in a cause of compliant made before it. Where a court lacks jurisdiction over a matter, it lacks the “vires” to entertain and deliberate on it.

A defect in competence is therefore fatal in that it renders the entire proceedings, trial and findings invalid, null and void “ab initio” however brilliantly they must have been conducted and

concluded. See the cases of:

(1) Oke v. Oke (2006) I7 NWLR (Pt. 1008) p. 224; and

(2) Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) Pp. 163 at p. 168.

A nullity in law has been defined as a void act and the effect thereof is that such an act has no legal consequence. A void act such as a null proceeding is not only bad and of no legal consequence, it is incurable and can not be salvaged. See the cases of:

(1) Saleh v. Monguno (2006) 15 NWLR (Pt. 1001) p. 26 at p.74;

(2) Mobil Prod. (Nig.) v. LASEPA (2002) 18 NWLR (Pt.798) p.1 at p. 31-32;

(3) Madukolu v. Nkemdilim supra; and

(4) Ofia v. Ejem (2006) 11 NWLR (Pt. 992) p. 652.

A court must of necessity be vested with jurisdiction before it can embark on any voyage or journey of adjudication. The issue of jurisdiction is so serious and exceptional in all matters, so much so that it is settled that it cannot even be compromised by parties in an action or even the court. Parties cannot for instance by consent or agreement confer jurisdiction on a court where a court has none. The competence of a court to adjudicate upon a matter is a legal and constitutional prerequisite without which a court is a lame duck.

See the cases of:

(1) Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) p. 195;

(2) NDIC v. CBN (2002) 7 NWLR (Pt. 766) p. 272; and

(3) Saleh v. Monguno supra.

It is an age long settled principle of law that a court is said to be competent or possess jurisdiction to entertain and determine a matter placed before it if:

(a) it is properly constituted as regards qualification of members of the bench, and no member is disqualified for one reason or another; and

(b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c) the case comes before the court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction.

All the three conditions stated above must co-exist for the court to be vested and clothed with proper competence and jurisdiction. See the cases of:

(1) Madukolu v. Nkemdilim supra 587; and

(2) A.-G. Anambra State v. A.-G., Federation (1993) 6 NWLR (Pt. 302) p. 692.

The issue of jurisdiction is a hard-and-fast and an incurable principle of law, albeit the determination of courts’ competence however depends on the peculiar circumstances of each case.

Furthermore, in determining the jurisdiction of a court, the enabling law vesting jurisdiction on it has to be examined in the light of the relief or reliefs sought. This is so because courts are creations of statutes and their jurisdiction is therefore confined, limited and circumscribed by the statute creating them. Court can not in essence give themselves or expand their jurisdictional horizon by misappropriating, or misconstruing statutes. See the cases of:

(1) African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) p. 137;

(2) Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) p. 382; and

(3) A.P.C. Ltd. v. NDIC (NUB Ltd.) (2006) 15 NWLR (Pt.1002) p. 404.

The Constitution of the Federal Republic of Nigeria is the ground norm of the country, it is in fact the “fons juris” from which all other laws flow and derive their validity. It is the organic law which prescribes the rights, duties, powers and responsibilities of all the organs derivable from it. Courts are organs created by the Constitution and it is the Constitution majorly and principally that defines their jurisdiction. It is the substantive law which makes provisions for the procedural laws or other statutes applicable in the various courts established by it. See the case of:

Rosseck v. ACB (1993) 8 NWLR (Pt. 312) 382 at p. 439.

It is an established principle of law that the plaintiff’s claims in the writ of summons and the averments in his statement of claim determine whether or not a given case comes within the jurisdiction conferred on a court. See the case of:

A.-G .. Oyo State v. N.L.C. (2003) 8 NWLR (Pt. 821) p. 1.

This is to say that in determining the jurisdiction of a court, the enabling law vesting jurisdiction in the court has to be examined in the light of the relief or reliefs sought by a plaintiff. The moment the relief sought comes within the jurisdiction of the court as portrayed by the facts of the relief sought, the court must assume jurisdiction as it then has jurisdiction to do so. Contrariwise, the moment the relief sought does not come within the jurisdiction of the court as portrayed by facts, the court must reject jurisdiction as it has no jurisdiction in the matter. See the cases of:

(1) Babale v. Abdulkadir (1993) 3 NWLR (Pt. 281) p. 253;

(2) O.H.M.B. v. Garba (2002) 14 NWLR (Pt. 788) p.538;

(3) Trade Bank Plc v. Benilux Nig. Ltd. (2003) 9 NWLR (Pt.825) p. 416:

(4) A. P. C. Ltd. v. NDIC (NUB Ltd.) supra at p. 404; and

(5) Omvudiwe v. FRN supra at p. 382.

Jurisdiction is the lifeline of every judicial proceedings before any court or tribunal without which all subsequent proceedings are fruitless, futile and a nullity because the issue of jurisdiction is fundamental to the proper hearing of a cause. See the cases of:

(1) Madukolu v. Nkemdilim supra; and

(2) Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) p. 266.

Jurisdiction is a term of comprehensive import embracing all kinds of judicial action, it is basically the legal right by which Judges exercise their authority including the power to hear and determine the subject matter in controversies between parties to a suit. It is the basis, foundation, and conduit of access to court in adjudication under the Nigerian legal system. This is the procedural principle that where there is a challenge to the jurisdiction of court, it must be entertained promptly. See the cases of:

(1) Ogunmokun v. Milad. Osun State (1999) 3 NWLR (Pt.594) p. 261;

(2) A.-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) p.552 at p. 602;

(3) NDIC v. SBN Plc (2003) 1 NWLR (Pt. 801) p. 311;

(4) Ezomo v. Oyakhire supra;

(5) Oloriode v. Oyebi (1984) 1 SCNLR p. 390;

(6) Skenconsult v. Ukey (1981) 1 SC 6;

(7) Continental Trust Bank Ltd. v. Balogun (2003) FWLR (Pt.162) p.1908; and

(8) First Fuels Ltd. v. N.N.P.C. (2007) 2 NWLR (Pt.1018) p.276.

It is quite patent from the records that the appellant is contending as a member of the 3rd respondent party. He was nominated, participated in primaries, screened and cleared to contest in the gubernatorial election in Rivers State on the platform of the 3rd respondent party. This is evidenced by the claims of the appellant in his amended statement of claim at pages 65 – 70 of the record of proceedings. See particularly, paragraphs 1-4 and 24(c) which state as follows:

“1. Plaintiff is the duly nominated Rivers State Peoples Democratic Party candidate for the Governorship Election coming up in April 2007.

2. Plaintiff is a member of Peoples Democratic Party herein referred to as “PDP” and was elected two times since 1999 as a member and Speaker of Rivers State House of Assembly of the Federal Republic of Nigeria under the platform of the Peoples Democratic Party.
3. Before the plaintiff became the candidate of PDP he went through party screening, clearance and party primaries.
4. Upon being screened and cleared to contest the partly primaries, plaintiff contested the party primaries with about 6 other governorship aspirants and came first with six thousand five hundred and twenty seven votes (6,527).

…

…

…

24. Plaintiff has been educated up to at least School Certificate level; and

(a) …

(b) …

(c) …

He is a member of PDP who has been sponsored by PDP for the post of Governor of Rivers State.”

I also refer to reliefs (vi) and (vii) which have been reproduced earlier on in this ruling.

At this juncture, it becomes apposite to consider the issue of the appellant’s membership of the 3rd respondent party. A person’s qualification for election and candidacy prerequisite to the office of Governor of a State are contained in the Constitution and the Electoral Act, 2006. Section 177(c) of the 1999 Constitution stipulates as follows:

“177. A person shall be qualified for election to the office of Governor of a State if –

(c) he is a member of a political party and is sponsored by that political party;

…”

Section 32(1) of the Electoral Act, 2006 provides that:

“32(1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.”

The provisions of the above laws are quite clear and explicit.

The law on interpretation of statutes is well established and time honoured that, where the words of a statute are clear and unambiguous, they should be accorded their ordinary grammatical and literal meanings unless to do so will result in ambiguity or absurdity. See the case of:

Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) p. 116 at Pp. 203 – 204.

It is not only that the words of the above provisions are clear and explicit, it is common knowledge that a person can only qualify and become eligible to vie for an elective post including that of Governor of a State if he is a member of a political party and he must be a sponsored candidate of the party. I agree with the submissions of the learned senior counsel for the 2nd respondent that both the 1999 Constitution and the Electoral Act, 2006 or indeed any other law do not recognise the concept of independent candidacy at any election. A person must in essence continue to be a member of the political party sponsoring him in truth and spirit. He cannot stand in an election on the platform of the party “mala fide”.

With the combined reading of the two provisions, the PDP is the platform for the appellant to run for the April election and it is the party that must sponsor him as its gubernatorial candidate in the election. Up to a stage, the PDP complied with the provisions of both section 177(c) of the 1999 Constitution and section 32(1) of the Electoral Act, 2006. It was the party that nominated, sponsored and submitted to the 1st respondent, INEC, the names of the appellant as its gubernatorial candidate in Rivers State for the April election. The only grouse of the appellant is the issue of the substitution or removal of his names in exchange for the names of the 2nd respondent by the PDP. See paragraphs 1 – 4 and 24(c) of the appellant’s amended statement of claim, which have already been reproduced above. It is also important in this regard to and I will hereunder reproduce paragraphs 10, 27 and 28 of the appellant’s amended statement of claim:

“10. Following the conclusion of the party primaries; the national Chairman and National Secretary of PDP submitted the plaintiff’s name and that of the Tele Ikuru as the Peoples Democratic Party Governorship and Deputy candidates respectively for Rivers State for the April, 2007 Governorship Election to the Independent National Electoral Commission (INEC).

…

…

27. That the 3rd defendant PDP has just submitted the name of one Celestine Omehia the 2nd defendant to the 1st defendant in place of the plaintiff’s name and 1st defendant is about accepting the substitution or change of the plaintiff’s name with that of the 2nd defendant, from the 3rd defendant (PDP) without any cogent or verifiable reasons and without a court order to that effect…

…

28. Unless and until the respondents are restrained by the court, the appellant’s name may be removed without cogent and verifiable reasons as stipulated under the Electoral Act, 2006.”

See also reliefs (i), (iv), (vi) and (vii) sought by the appellant. I have earlier on in this ruling reproduced the claims under the reliefs.

After the 3rd respondent had effected the substitution, the appellant being aggrieved instituted a suit against the respondents as defendants in the trial court, the suit culminated in this appeal. The appellant has now been expelled from the 3rd respondent party. The evidence of the appellant’s expulsion is as contained in exhibit “A”, the Press Statement dated April 10, 2007. Learned senior counsel for the appellant has contended that exhibit “A” is not a valid document but a mere resolution. It was not issued by the proper organ of the PDP. It was issued with the aim of frustrating the present appeal, it is “sub judice” and therefore contravenes and offends the provisions of section 91 (3) of the Evidence Act.

I have carefully perused exhibit “A”. It is my humble but firm view that it is a communique issued by the 3rd respondent party after one of its meetings. It relates to the internal affairs of the party, meant for the party members and for the information of the whole world at large. Having been signed by the National Publicity Secretary, an appropriate national officer of the party, I hold that it was properly issued by the party. Going by all the paragraphs of exhibit “A”, only paragraph 2 makes a general allusion to the fact that the party was not pleased with the various illegal litigations instituted in court against it by some of its members. No reference was made to the present appeal in exhibit “A” apart from where the name of the appellant was stated along with the name of someone else. Both of them were asked to proceed on expulsion from the PDP for the reasons of gross indiscipline and wanton violation of the Party’s Constitution. This is paragraph 4 which reads as follows:

“4. The National Working Committee also considered the cases and reports brought against Senator Ifeanyi Ararume (Imo State) and Hon. Rotimi Amaechi (Rivers) from the State Chapters and proceeded to expel both of them from the PDP for gross indiscipline and wanton violation of the PDP Constitution. Consequently, the PDP has no gubernatorial candidate in Imo State for the elections of 14th April, 2007.

Exhibit “A” is the document intimating this court with the Current relationship between the parties in this appeal and to this extent it is apposite for me to examine and consider it as such. The authenticity of it and the propriety of the expulsion cannot be enquired or dabbled into by this court at the present stage of the appeal. The reason is that these are not the issues, the subject matter of the appeal. The subject matter of the appeal is the substitution of the names of the appellant with those of the 2nd respondent’s. The appellant is challenging this substitution as a “bonafide” member and sponsored gubernatorial candidate of the PDP in Rivers State in the April, 2007 election. What is more, the appellant is not before this court to challenge his expulsion from the PDP. To put it differently, the allegation or contention of the learned senior counsel for the appellant that exhibit “A” was not issued by the proper organ of the PDP in line with the provisions of the party’s Constitution, exhibit “E” cannot be considered by this court.

It is established that the issue of who should be a candidate of a given political party at any election is clearly a political one to be determined by the rules, regulations and Constitution of the political party. The issues of nomination, sponsorship and substitution of candidates precede the election and are therefore pre-election issues. The political party has the right to change its candidate before the election in the exercise of that right. A court of law lacks jurisdiction to adjudicate on intra-party contest or nomination of candidate. No party member has a legal right to the nomination. There is no corresponding obligation on the political party so as to pave way for the powers of the court to be invoked under section 6 of the 1999 Constitution. In effect a court of law has no jurisdiction over the issue or the determination of intra-party political matters. The issue of primaries conducted for the selection of candidates to contest an election at any given time is the exclusive preserve of the political parties outside the province or competence of courts. The court shall not impose a candidate on a political party. See the cases of:

(1) Onuoha v. Okafor supra;

(2) Chukwu v. Icheonwo (1999) 4 NWLR (Pt. 600) p. 587;

(3) Tsoho v. Yahaya (1999) 4 NWLR (Pt. 600) p. 657;

(4) Owuru v. INEC (1999) 10 NWLR (Pt. 622) p. 201;

(5) Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) p. 267;

(6) Dalhatu v. Turaki supra;

(7) Adebusuyi v. Oduyoye (2004) 1NWLR (Pt. 854) p. 406;

(8) Jang v. INEC (2004) 12 NWLR (Pt. 886) p. 46; and

(9) Rimi v. INEC (2005) 6 NWLR (Pt. 920) p. 56.

The modification to the above general principle of law is the provisions of section 34(1) and (2) of the Electoral Act, 2006 which have created and placed an extra duty on INEC in its supervisory and monitoring roles over the conduct of the affairs of political parties. By the provisions, cogent and verifiable reasons must be given by the political parties when substituting their candidates. To ensure fairness in this regard, the procedure engaged by the political parties and INEC can be challenged in court for the interpretation of the provisions of the section. See the unreported Supreme Court case of:

Engr: Charles Ugwu v. Senator Ifeanyi Ararume & 2 Ors. delivered on the 5th day of April, 2007.

However, the issue of the expulsion of the appellant, a disciplinary measure for the reasons advanced by PDP in paragraph 4 of exhibit “A” remains truly an intra-party affair. The PDP expelled the appellant for alleged gross indiscipline and wanton violation of the party’s Constitution. The appellant having subscribed to the party’s Constitution is bound by its provisions. The party and its members cannot be stopped from exercising their legitimate rights thereunder having freely given their consent to be so bound. The court cannot dabble into such rights as in the instant case where the PDP has exercised its legitimate right to discipline the appellant, one of its members. This is the age-long and established principle of law in the cases of:

(1) Onucha v. Okafor supra; and

(2) Dalhatu v. Turaki also supra.

The fact of the expulsion of the appellant having been established, this unfortunately marks the end of the relationship between the PDP and the appellant. The dispute also between the appellant on the one part and the respondents on the other part becomes extinguished. The appellant from the point of his expulsion ceased to be a member of the party. Consequently, the cause of action in the appeal is terminated for the appellant came to court in the first instance to air his grievances as a member of the PDP. Presently, his cause of action is no longer viable.

It is settled law as earlier on elaborated upon in this ruling that it is the plaintiff’s cause of action that determines the legal right of a party to judicial relief(s). The subject matter, that is, all the features entitling the court to its exercise of jurisdiction must be intact from the time a suit is authored to its terminal end. See the cases of:

(1) Ogunmokun v. Milad., of Osun State supra;

(2) Kolo v. F.B.N. Plc (2003) 3 NWLR (Pt. 806) p.216;

(3) Shonubi v. Onafeko (2003) 12 NWLR (Pt. 834) p. 254;

(4) Ogbaegbe v. F.B.N. Plc supra at p. 390;

(5) Madukolu v. Nkemdilim supra;

(6) Ajibola v. Sogeke (2003) 9 NWLR (Pt. 826) p. 494;

(7) B. B. Apugo & Sons Ltd. v. Orthopeadic Hospital Management Board (2005) 17 NWLR (Pt. 954) p. 305 at p. 334 – 335; and

(8) Okumodi v. Sowunmi (2004) 2 NWLR (Pt. 856) p. 1 at p.24.

Having found that the cause of action of the appellant has become extinguished, there is nothing to base the appeal upon. For a claim to be sustained, it must have its root in law, not sentiments just as the court will not conjecture or speculate the existence of a claim.

While I come to the conclusion of this ruling, I wish to restate that the 1999 Constitution is the ground norm in Nigeria, it is the supreme law. Notwithstanding its complex nature, all other legal norms must conform to and not conflict with it. Therefore, any other law, rule or regulation operated by any government, body or organization including a political party Constitution aimed at buffeting citizens in the exercise of their constitutional rights is obviously unconstitutional. The powers of the three separate functionaries of government namely, the executive, legislature and judiciary under the 1999 Constitution are very important, they are indeed the letters of the Constitution. However, the environment to exercise the powers without fettering, thwarting, and short-circuiting the workings of any arm is the true spirit of the Constitution. Although the Nigerian democracy is said to be nascent, it is nonetheless based on the rule of law. For democracy to grow, thrive, and be established in an atmosphere where the rule of law will equally prevail, manipulations and intrigues all in the name of political exigency should not be the order of the day.

Consequent upon the totality of my above reasoning and conclusions, I hold that because there is no longer in existence any relationship and dispute between the appellant and the respondents in view of the reliefs being sought by the appellant, this court has no jurisdiction to adjudicate upon the appeal. All the issues in the substantive appeal and the cross-appeals cease to believe and any consideration of them will not just amount to mere expression of opinion, a moot debate and academics which activities colitis are precluded from engaging in, it will indeed be an exercise in futility, a further waste of precious judicial time, energy and resources. See the cases of:

(1) Attorney-General of the Federation v. ANPP (2003) 18 NWLR (Pt. 851) p.182 at p. 215 – 216; and

(2) Olafisoye v. FR.N. (2004) 4 NWLR (Pt. 864) p. 580.

The applications of the 2nd & 3rd respondents are meritorious and they succeed. The appeal No. CA/A/70/07 and the cross-appeals are hereby struck out for incompetence.

There is no order for costs.

---

Other Citations: (2007)LCN/2310(CA)